Allen v. McMinn, 76 N.C. 395 (1877)

Jan. 1877 · Supreme Court of North Carolina

76 N.C. 395

T. A. ALLEN v. NATHAN McMINN and others.

Practice — Report of Referee.

Where in an action against three defendants for goods alleged to have-been sold and delivered to two of them at the request of the third, which action is tried before a referee who does not find any fact' fixing a liahil- • ity on the third defendent, hut reports that plaintiff should have judgment against the defendant; Held, that the plaintiff is not entitled to judgment against the third defendant.

Civil ActioN, tried at Fall Term, 1876, of Henderson; Superior Court, before Henry, J.

The plaintifl’ demanded the payment of $446.88 and interest, alleged to be due by defendants for merchandise sold •-.and delivered at the request of defendant Nathan McMinn to the other defendants who assumed the payment of said (sum.

An answer was filed denying the amount of the debt and 1-an order made to refer the case to M. M. Patton to state an ••account. In pursuance of said order the referee reports the ■•amount due plaintifl' to be $258.40, and defendant Nathan McMinn excepts to the report on the ground ; 1st. That it •did not appear that the defendants were jointly indebted; 2. That the report did not show that this defendant was in :any way indebted to plaintiff; 3d. Nor to whom the goods were sold or delivered ; 4th. Eor uncertainty in that the xeferee does not state which one of the defendants should be iheld liable, but says the plaintiff should have judgment •against the defendant■ '

The defendant Nathan also filed an affidavit stating that Re had no notice of the time or place for taking said account, •and was not present when the same was done. A similar affidavit was made by defendant J. J. McMinn.

At the hearing of the case Ilis Honor, overruled the exceptions, confirmed the report of the referee and gave judgment in favor of plaintiff against defendants Nathan and ■<x. W. McMinn for the amount ascertained to be due. Appeal by defendants.

Mr. T. D. Johnston, for the plaintiff.

Mr. J. U. Memmon, for the defendants.

Haircloth, J.

This is an action against three defendants 'for the value of goods sold and delivered to two of the defendants and their families. An account was stated under :.a reference and a report made, to which the other defendant ffiled exceptions, which were overruled and judgment rendered for plaintiff against 'all the defendants, from which? ruling the third defendant appealed to'this Court. The? record shows only a meagre account of the transactions between the parties. No fact is found by the referee fixing; any liability for the debt on the appellant, nor do we disr cover any sufficient evidence to authorize a judgment against; the defendant Nathan McMinn. As to him .there is error.

Let this be certified, &c.

Error.

Per Curiam. Judgment reversed-